Citation NR: 9741089
Decision Date: 12/11/97 Archive Date: 12/16/97
DOCKET NO. 96-13 561 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to a permanent and total rating for pension
purposes.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
T. L. Douglas, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1971 to December
1973.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a January 1995 rating decision by the
Houston, Texas, Regional Office (RO) of the Department of
Veterans Affairs (VA), which denied entitlement to
nonservice-connected disability pension.
REMAND
The veteran claims that he is totally unemployable because of
his nonservice-connected disabilities. The Board finds
further development is required before a determination can be
made regarding the veteran’s occupational limitations.
The record reflects that the veteran is receiving Social
Security Administration (SSA) disability benefits. If
available, the records pertinent to that determination should
be associated with the veteran’s claims file.
Also, during an April 1996 VA orthopedic examination the
veteran complained of continued pain. The VA examiner noted
the veteran was status post right and left hip replacement,
which was moderately symptomatic, and status post L5-S1
lumbar spine fusion, mildly symptomatic; however, the report
of examination includes no discussion of the objective
evidence of pain nor documentation of all of the functional
limitations imposed by the veteran's musculoskeletal
disorders. See DeLuca v. Brown, 8 Vet.App. 202 (1995).
The fulfillment of the statutory duty to assist includes
providing additional VA examinations by a specialist when
recommended, and conducting a thorough and contemporaneous
medical examination, which takes into account the records of
prior medical treatment, so that the disability evaluation
will be a fully informed one. See Hyder v. Derwinski,
1 Vet.App. 221 (1991); Green v. Derwinski, 1 Vet.App. 121,
124 (1991).
Accordingly, the case is REMANDED for the following:
1. The RO should request the SSA records
concerning the veteran’s claim for
disability benefits. All pertinent
medical records should be obtained by the
RO and associated with the claims folder.
The veteran should be asked to sign any
necessary consent forms for release of
medical records.
2. The veteran should be afforded a VA
orthopedic examination to determine the
nature and severity of any
musculoskeletal disabilities. The claims
folder and a copy of this remand should
be made available to and reviewed by the
examiner prior to conduction and
completion of the examination. The
examination should include any tests or
studies deemed necessary for an accurate
assessment, and should include complete
active and passive range of motion
testing.
The examiner should specify any
anatomical damage and describe any
functional loss, including the inability
to perform normal working movements. The
examiner should specify any functional
loss due to pain or weakness, and
document all objective evidence of those
symptoms. See 38 C.F.R. §§ 4.40, 4.45,
4.59 (1996). The examiner should also
document, to the extent possible, the
frequency and duration of exacerbations
of symptoms.
The examiner should set forth findings on
how the exhibited disabilities, as a
whole, affect the veteran’s ability to
obtain and retain employment. All
findings, and the reasons and bases
therefor, should be set forth in a clear,
comprehensive and legible manner on the
examination report.
3. Thereafter, the RO should review the
claims file to ensure that the above
requested development has been completed
in full. In particular, the RO should
ensure that the requested examination and
required opinions are responsive to and
in compliance with the directives of this
remand and if they are not, the RO should
implement corrective procedures.
4. The RO should then review the
veteran’s claim for a permanent and total
disability rating for pension purposes.
In brief, the RO should make a new rating
decision which clearly identifies each
disability and assigns a specific
percentage rating for each disability
under a specific diagnostic code. The RO
should apply the objective ("average
person") test provided under 38 U.S.C.A.
§ 1502(a)(1) (West 1991) and 38 C.F.R.
§ 4.15 (1996) and subjective
("unemployability") test when deciding
whether the veteran is permanently and
totally disabled. Talley v. Derwinski, 2
Vet.App. 282 (1992); Brown v. Derwinski,
2 Vet.App. 444 (1992).
If any benefit sought, for which a timely notice of
disagreement was filed, is not granted to the veteran’s
satisfaction, the RO should issue a supplemental statement of
the case. A reasonable period of time for a response should
be afforded. Thereafter, the case should be returned to the
Board for final appellate review, if otherwise in order. By
this remand, the Board intimates no opinion as to any final
outcome warranted. No action is required of the veteran
until notified by the RO; however, the veteran is advised
that failure to cooperate by reporting for examinations may
result in the denial of the claim. 38 C.F.R. § 3.655 (1996).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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